Harris Lumber Co. v. Wheeler Lumber Co.

Wood, J., (after stating the facts.) The contract under consideration was severable, and the court erred in not so treating it. Although the contract called for the shipment of eleven car loads of lumber, yet the undisputed evidence is that it was to be shipped from time to time in car lots, and each car load was to be billed separately and the amount of purchase price for the lumber contained in each car was due and to be paid sixty days after delivery. Where the price to be paid is clearly and distinctly apportioned to different .parts of what is to be performed, although the whole is in its nature single and entire, the contract is severable. 2 Parsons, Cont. 577; Rugg v. Moore, 100 Pa. St., 236; Dowley v. Schiffer, 13 N. Y. Supp. 5-52, 553. In Williams v. Robb, 104 Mich. 242, it is held (quoting syllabus) : “a contract for the shipment of fifteen car loads of potatoes, while entire in the sense that either party has a right to full performance, is severable where it clearly appears that the shipments were to be made in' car lots to be paid for as received.” The contract in this case was entire in the sense that, if appellee had complied with its terms as to payment, it could then have compelled appellant to ship it the balance of the lumber, or else have responded in damages for its failure to do so. But here the uncontroverted proof shows that appellee was guilty of the first breach of the contract. For its letter of April 4th shows that it held back the sum of one hundred dollars that was due appellant, and appellee’s own evidence shows that this amount “was held back in order to force appellant to make shipment.” True, appellee contends that appellant, in its course of dealing, by allowing appellee to make payments and in receiving same after they were due, and in not insisting on prompt payment of the amounts as they became due, waived any breach, if any, of the contract on appellee’s part in that respect. This would certainly be correct up to the time when appellant definitely notified appellee that it must comply with the contract in making payments, and that it was required to pay the past due indebtedness on shipments before appellant would ship any more lumber. Such notice appellant gave appellee March 20, 1906, in a letter of that date, and it was after this that appellee “held back” the one hundred dollars past due “to force appellant to make shipment.” Appellee could not do that. Appellant claimed (and really there is no evidence to the contrary) that ic had performed its contract and had shipped the lumber to appellee “as fast as it had been able to accumulate it on its yard.” If appellant had not performed its contract in shipping the lumber as promptly as the contract required and refused to ship any more lumber under it, appellee could have abandoned same and sued for damges for the breach, but appellee could not stand on the contract and insist on further shipments of lumber when it was in default in making payments that were past due under it, at least without tendering those payments. Mr. Tiedeman says: “If the breach of condition of part payment is the result of accident or oversight, or is attendant by other facts and circumstances which are inconsistent with an intention to abandon the contract, and which incline one to presume that the buyer intended to fully perform the contract, then the failure to pay an installment at the agreed time does not work a forfeiture of the whole contract, but by tender of the future installments of payments he may claim the benefits of the sale. But if the acts of the buyer in failing to make the payment of an installment indicate his intention to abandon the contract, as where the refusal to pay is willful, and not through a misunderstanding or accident, the entire contract is held to be forfeited, and the seller can not thereafter be compelled to perform the contract.” Tiedeman on Sales, § 210. Here the failure to pay the one hundred dollars, admitted by appellee to be past due, was not accidental but intentional, as shown by appellee’s own evidence. There was no tender to appellant of the past due payment, but an intentional withholding of same to compel the other party to perform. A party, who is himself in default, without any offer to repair such default, can not insist on performance by the other party as a condition precedent to his performance. Spencer Medicine Co. v. Hall, 78 Ark. 336; Lee v. N. H. Ry. Co., 15 Fed. Cas. 214; Porter v. Arrowhead Reservoir Co., 100 Cal. 504; San Francisco Bridge Co. v. Dumbarton Co., 119 Cal. 275; McGrath v. Gegner, 77 Md. 331: Dunham v. Mann, 4 Seld. 512; Curtis v. Gibney, 59 Md. 131; Haines v. Tucker, 50 N. H. 307; King Phillip Mills v. Slater, 12 R. I. 82; Guerdon v. Corbett, 87 Ill. 273; Wilson v. Bauman, 80 Ill. 494; Winchell v. Scott, 114 N. Y. 640; Flaherty v. Miner, 123 N. Y. 382, 389: Mead v. Degolyer, 16 Wend. 638; Ladue v. Seymour, 24 Wend. 60, 62; Jones v. Judd, 4 N. Y. 411; Kokomo Strawboard Co. v. Inman, 134 N. Y. 92; Pattridge v. Gildmeister, 1 Keyes, 93; Barnes v. Denslow, 9 N. Y. Supp. 53. In Rugg v. Moore, 110 Pa. St. 242, where the facts are similar, the court said: “Fie paid the first (draft) and refused to pay the second, because he wanted to see whether the defendants had shipped or would ship all the corn. This was not a sufficient reason for refusing to pay after he had accepted and received the corn. If, then, the contract required payments on deliveries, and the plaintiff wilfully refused payment, according to the contract, he thereby authorized defendants to rescind at their option.” See also Nichols v. Scranton Steel Co., 137 N. Y. 471, and other authorities to this point cited in appellants briefs. King v. Faist, 161 Mass. 449. Opinion delivered January 11, 1909. The court erred in' giving instructions numbered one and two and in refusing prayers numbered one and two asked by appellant. We do not concur in the view expressed by counsel for appellee that the contention of counsel for appellant here is not responsive to the issues raised below. The appellant alleged a compliance with the contract on its part, and the sum of $100 due on the part of appellee in not making payment, and asks judgment for the amount of that payment, which appellee admits was due on the lumber that had been shipped. The judgment is reversed, and judgment is entered here for appellant for the sum of $100.